Demir and Baykara v Turkey
Encyclopedia
Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights
case concerning Article 11 ECHR
and the right to engage in collective bargaining
. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.
Municipal Council did not comply with its provisions. Demir and Baykara brought proceedings in the District Court, and won their claim. However, on appeal the Court of Cassation quashed the decision. This Court held there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood".
The matter was then remitted to the District Court, which in definance restated its view that Demir and Baykara did have a right to collective agreements, because this accorded with International Labour Organisation Conventions ratified by Turkey. But again, the Court of Cassation overturned the District Court's decision. Furthermore, a separate claim in the Audit Court had been brought, which found that civil servants had no authority to engage in the collective agreement, and so the civil servants had to get the union to repay extra benefits it had got under the "defunct" collective agreement.
After these domestic avenues were exhausted, in 1996 the union made an application to the European Court of Human Rights, alleging breach of freedom of association under article 11 ECHR
and protection against discrimination under article 14 ECHR. After some time, in 2006, the case was heard by seven judges of the second section. It was held that article 11 had been violated, and there was no need to examine article 14. The Turkish Government then requested that the matter be referred to the Grand Chamber.
The Grand Chamber then turned to whether the Court of Cassation's annulment of the collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years was lawful, based on its interference with article 11 ECHR
.
A particular point of interest is its apparent tension with decisions of the European Court of Justice
of the European Union
in The Rosella and Laval, which held that there is a qualified right to strike, but one which can only be exercised when it does not disproportionately affect the EU business right to freedom of establishment or providing services. It is highly open to question that these two cases, which preceded the judgment in Demir could be reconciled, given that Convention jurisprudence places the emphasis on justifying restrictions on the human right to free association, and would seem to favour greater attention to the need to collectively bargain. This had led to predictions that there could be a "showdown" between the Strasbourg and Luxembourg courts. Ewing and Hendy write,
EU cases
Other
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
case concerning Article 11 ECHR
Article 11 ECHR
Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".-Case law:*Plattform "Ärzte für das...
and the right to engage in collective bargaining
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.
Facts
Ms Vemal Demir was a member, and Mr Vicdan Baykara was the president, of the Turkish trade union for civil servants, Tüm Bel Sen. The union signed a two year collective agreement in 1993, but the employer, the GaziantepGaziantep
Gaziantep , Ottoman Turkish: Ayintab) previously and still informally called Antep; ʻayn tāb is a city in southeast Turkey and amongst the oldest continually inhabited cities in the world. The city is located 185 kilometres northeast of Adana and 127 kilometres by road north of Aleppo, Syria...
Municipal Council did not comply with its provisions. Demir and Baykara brought proceedings in the District Court, and won their claim. However, on appeal the Court of Cassation quashed the decision. This Court held there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood".
The matter was then remitted to the District Court, which in definance restated its view that Demir and Baykara did have a right to collective agreements, because this accorded with International Labour Organisation Conventions ratified by Turkey. But again, the Court of Cassation overturned the District Court's decision. Furthermore, a separate claim in the Audit Court had been brought, which found that civil servants had no authority to engage in the collective agreement, and so the civil servants had to get the union to repay extra benefits it had got under the "defunct" collective agreement.
After these domestic avenues were exhausted, in 1996 the union made an application to the European Court of Human Rights, alleging breach of freedom of association under article 11 ECHR
Article 11 ECHR
Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".-Case law:*Plattform "Ärzte für das...
and protection against discrimination under article 14 ECHR. After some time, in 2006, the case was heard by seven judges of the second section. It was held that article 11 had been violated, and there was no need to examine article 14. The Turkish Government then requested that the matter be referred to the Grand Chamber.
Judgment
The Grand Chamber of the European Court of Human Rights held unanimously that there had been a disproportionate and unjustified interference with the right to freedom of association.The Grand Chamber then turned to whether the Court of Cassation's annulment of the collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years was lawful, based on its interference with article 11 ECHR
Article 11 ECHR
Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".-Case law:*Plattform "Ärzte für das...
.
Significance
Demir and Baykara v Turkey has widely been seen as a landmark case in the international development of freedom of association. Its significance lies in confirming that there is an inherent right to collective bargaining protected by article 11 ECHR, within the right to freedom of association. Only interference that is strictly necessary in a democratic society can be justified.A particular point of interest is its apparent tension with decisions of the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
in The Rosella and Laval, which held that there is a qualified right to strike, but one which can only be exercised when it does not disproportionately affect the EU business right to freedom of establishment or providing services. It is highly open to question that these two cases, which preceded the judgment in Demir could be reconciled, given that Convention jurisprudence places the emphasis on justifying restrictions on the human right to free association, and would seem to favour greater attention to the need to collectively bargain. This had led to predictions that there could be a "showdown" between the Strasbourg and Luxembourg courts. Ewing and Hendy write,
See also
ECHR cases- Swedish Engine Drivers’ Union v Sweden (1976) 1 EHRR 617, para 40, ‘the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11(1) certainly leaves each State a free choice of the means to be used towards this end. Whilst the concluding of collective agreements is one of these means, there are others.’
- Sigurjónsson v Iceland (1993) 16 EHRR 462
- Wilson v United Kingdom (2002) 35 EHRR 20, [2002] ECHR 552
- Associated Society of Locomotive Engineers and Firemen v United Kingdom [2007] IRLR 361
- Enerji Yapi-yol Sen v Turkey [2009] ECHR 2251
EU cases
- The Rosella [2008] IRLR 143 (C-438/05), on freedom of establishment
- Laval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike...
[2008] IRLR 160 (C-319/05, see also (C-319/06), on free movement of services
Other
- Health Services and Support-Facilities Subsector Bargaining Association v British Columbia [2007] 2 SCR 391
External links
- Eurofound.europa.eu summary of the case
- [2008] ECHR 1345 Full text of judgment